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Supreme Inaction on Gay Marriage

  • 2014 Oct 09

As you’ve doubtless heard by now, the Supreme Court has refused to hear appeals in cases that had overturned bans on same-sex marriage in five states.
That brings the total of states in which same-sex marriage is now legal to 24, plus the District of Columbia.
The New York Times hailed the Court’s inaction as a “tacit victory” for same-sex marriage, which it undeniably is. Other media outlets are proclaiming the end of the battle over gay marriage.
So the question is, “What now?”
Since most of what is being written about the Court’s action is more cheerleading than actual reporting, it’s important to put the Court’s refusal to hear the appeals in its legal and political context.
Since last year’s decision in United States v. Windsor, which struck down the Defense of Marriage Act, more than forty courts across the U. S. have ruled on the issue of same-sex marriage, and only two have upheld state bans. For those of you keeping score at home, that’s 40-to-2 in favor of same-sex marriage.
Among the forty were the Fourth, Seventh, and Tenth Circuits. Since they all agreed that states couldn’t ban same-sex marriage, the Supreme Court could cite a lack of what lawyers call “a conflict in the Circuits” and decline to hear the cases.
That’s the legal context. The political context is that the Supreme Court justices who favor same-sex marriage can allow lower courts to in effect do their dirty work and embrace same-sex marriage.
This (relatively) slow-motion judicial activism may not satisfy the New York Times Editorial Board—which asked the Court “what are [you] waiting for?”—but it helps to avoid the kind of backlash engendered by Roe v. Wade.
Once people are used to the idea of same-sex marriage, the Supreme Court can then step in and declare it to be, as Justice Anthony Kennedy infamously wrote, an indispensable part of “[defining] one's own concept of existence, of meaning, of the universe, and of the mystery of human life," whatever that means.
So, what now? As the Alliance Defending Freedom stated, “The court’s decision not to take up this issue now means that the marriage battle will continue. Several federal courts … still have cases working their way to the Supreme Court . . . The people should decide this issue, not the courts.”
Amen to that.
But the fact remains that, to use another sports metaphor, it’s the bottom of the ninth and we’re behind. Thus, the answer to the question posed by my colleague John Stonestreet—“what now?”—must be an increased emphasis on safeguarding religious freedom.
As my friends Rod Dreher and Terry Mattingly have been telling anyone who will listen for quite some time, the relationship between religious freedom and gay rights is unfortunately a “zero-sum game.” If that sounds extreme or a bit paranoid, ask the folks at Gordon College who may lose their accreditation for daring to impose Christian moral standards on themselves. Four years ago, Jonathan Rauch, who is gay, warned gay rights advocates that “Being seen as a threat to religious freedom is not in our interest.”
But gay activists weren’t buying it then, and now that they’re close to winning it all, they certainly aren’t buying it now. The defense of religious freedom is the next battle that will be waged—and must be won.
Please come to, and we’ll link you to organizations that are defending religious freedom . . . and then enter the fray! Support Religious Freedom.


BreakPoint is a Christian worldview ministry that seeks to build and resource a movement of Christians committed to living and defending Christian worldview in all areas of life. Begun by Chuck Colson in 1991 as a daily radio broadcast, BreakPoint provides a Christian perspective on today’s news and trends via radio, interactive media, and print. Today BreakPoint commentaries, co-hosted by Eric Metaxas and John Stonestreet, air daily on more than 1,200 outlets with an estimated weekly listening audience of eight million people. Feel free to contact us at where you can read and search answers to common questions.

Eric Metaxas is a co-host of BreakPoint Radio and a best-selling author whose biographies, children's books, and popular apologetics have been translated into more than a dozen languages.

Publication date: October 9, 2014